"Artists like Steven Tyler, Don Henley, Joe Walsh, Dr. Dre [and] Sting have recently filed comments with the Commerce Department strongly objecting to the notion of creating a compulsory license or expansion of fair use for digital sampling and mash-ups."
Heidi from FYeahCopyright is attending South By Southwest with Anne Jamison to talk about fanworks and transformative use on Tuesday, March 11 at 10 AM. Unfortunately, neither can stay until Thursday morning, when musicians and reps from music publishers have their panel: Love the Art, Fuck the Artist: The Re-emerging Artist Rights Movement?
We’re not surprised that they’re doing this presentation as part of the Music section of SXSW instead of the Interactive session, which ends on the 11th. It’s easier to conflate illegal downloads and the low rates paid for streaming music with completely unrelated copyright issues like fair use when your audience contains fewer people who work with copyrights or in tech.
We’re actually amused by their session summary, contrasted with SXSW’s “spotlight” writeup. The session summary talks about online distribution services, problems with labels and publishers, and only mentions fans as an aside, then notes that “heir property interest has been significantly devalued and their rights abridged.”
The rates of royalties for streaming audio are definitely something that needs to be resolved, as is the problem with illegal downloads and even the issue of fans uploading tunes - unedited, unchanged, just to listen to - onto YouTube and other video services.
But that’s shouldn’t be in the same paragraph as complaints about fair use.
However, the SXSW Spotlight summary about this panel conflates the topics:
Many songwriters and artists … believe there is much wrong with this so called “digital revolution.”
For artists, touring is harder than ever and their copyright property has been drastically devalued.
[Some s]ongwriters and artists firmly believe that the modern day recording artist/songwriter is under siege.
[A]rtists like Steven Tyler, Don Henley, Joe Walsh, Dr. Dre, Sting and Danger Mouse [sic] have recently filed comments with the Commerce Department strongly objecting to the notion of creating a compulsory license or expansion of fair use for digital sampling and mash-ups.
(Yes, I know it was deadmau5 but the piece says “Danger Mouse” so I’m not going to remove it; perhaps it shows sloppiness of the writing of the piece?)
Before we get into a discussion of the copyright issues, can someone explain why the “digital revolution” makes touring “harder than ever”? Since tour revenues are actually higher than ever, that doesn’t seem to be an honest statement of the industry overall, although it’s probably the case for some.
Now for Fair Use. The artists mentioned above filed comments responding to the same IP Green Paper that the OTW, Wattpad, Google and other organizations, individuals and companies filed comments in last fall. Please note, the comment mentions Fair Use only once, but the main focus of the comments is that the individual - or corporation - that holds the copyright in a work should be able to control all usages of that work. Their arguments regarding compulsory licenses are multifaceted, but they mention a distaste for allowing third parties to use their songs to criticize the songs’ themes or the artist. We can see why someone wouldn’t want their song to be used to bully or insult others, or in connection with art they don’t believe in, but compulsory licenses would not necessarily allow for uses in ads.
To quote TechDirt:
[T]his concern is essentially meaningless. An unlicensed remix can still do all these things. The only difference is that the original artist goes unpaid. There’s only one way to control how people will use your creation, and that’s to lock it away unreleased. Rejecting a compulsory license simply cuts off a potential revenue stream, and instead of protecting artists from derivative works they don’t approve of, it simply ensures they’ll never be paid for the derivative works that will be created without their explicit blessing.
The artists in question believe that the perspective of songwriters should be the paramount issue if Congress looks to modify the Copyright Act because “this is an issue that affects artists and songwriters first and foremost.”
But aren’t authors, filmmakers, visual/graphic/3D artists, architects, choreographers and computer code writers also affected as significantly as musical artists and songwriters? Why should the rules that apply to a bar of music also apply to a line of dialogue or a minor character who has one line in a film?
Would songwriters want to have to get a license before mentioning a book or film in their songs? If they want stronger limitations on Fair Use, it will impact the topics they’re even able to write about. “Music is very personal to the creator, so many creators staunchly oppose any derivative creations.”
Apply that concept, that phrase, globally.
Derivative creations include using song lyrics on an unrelated screencap (or a related one, frankly), quoting a bit of a song within original story - or even atop a post or article or school paper explaining why the song means something to you. You’re creating a derivative work when you’re videotaped playing a pop song in music class, or a sing along, Karaoke-style.
Right now, all those derivative works are legal.
There’s also a lot of songs about stories, people and things. Laurie Anderson, Spin Doctors, REM and Five For Fighting can write songs referring to Superman. But if there are no derivative works of any kind, could they? Could Barenaked Ladies mention X-Files? Would It’s The End of the World As We Know It, You Get What You Give or We Didn’t Start the Fire even exist? And how many songs mention The Wire?
We’re exaggerating here, to make a point. There’s no copyright in a title or the name of a person - at least not under current law - but current law also spells out a number of compulsory licenses and types of fair use.
Those parameters should not become narrowed.
Strip away legal fair use and critics can’t quote lyrics in album or concert reviews.
Strip away legal fair use and you can’t create parodies, so there’s no more content from How It Should Have Ended.
Strip away compulsory licenses and schools can’t host concerts with music created in the last century.
Strip away legal fair use and fanfic, fanart, vids and cosplay come to an end.
They’re not going to get their way; Congress isn’t looking to strip away fair use or end the practice of compulsory licenses. There are real, serious issues to debate and discuss to balance everyone’s right to be inspired, to create, and to make awesome things, music, stories and art.
But those debates aren’t going to happen if a small group of super-successful songwriters declare war on their fans.
Here’s a parallel: authors have known for years - and tv networks, showrunners/producers, movie studios and comic book companies also know - that they find success in working with fans, not suing them and not screaming at them when their creativity is inspired by another’s words. It took a while for companies like WB and Viacom - in 2000 and 2002 they were still fighting fans to hold more rights than the law explicitly gave them, and that’s why the parameters of fair use have been clarified by US courts in ever-broadening terms in the last ten to fifteen years.
But when songwriters say things like compulsory licenses will “discourage many artists and songwriters from releasing their music in the first place” they’re declaring war on fans. They’re saying that the potential possibility of someone using a song in a way they don’t approve of will keep them from sharing their creativity and works with the general public - even though they know that they can’t control their songs forever. Sting, one of the writers to sign onto the letter, spent 2006 focusing his talents on reinterpriting 16th century lute songs, so maybe they only want to have control for 500 or so years.
(And as a side-note to the songwriters who signed onto the above-referenced Comment: no, moral rights do not give European artists an absolute right to control derivative works. Such an exageration undermines the arguments they’re trying to make.)
(And as a historical reference point, check out this law journal article about the disputes involved in creating the first compulsory license for music, in connection with player pianos in 1909; we don’t agree with the conclusions re abolition of compulsory licenses (though we think that hte compulsory license rates should be adjusted for inflation) but the historical background is fascinating.)
(Lastly, it’s a little ironic to be lectured on the importance of artists having control over their works throughout the period of copyright by someone whose band covered a Beatles song in the oft-reviled movie Sergeant Pepper’s Lonely Heart’s Club Band. Mr Tyler can complain all he wants about how horrible it would be for his Dream On to be sung over a scene that “denigrates women” (page 7 of his letter) but he performed The Beatles’ “Come Together” without John Lennon’s consent, next to a woman tied to a dollar sign; later in the sequence she falls to her death. Disingenuous, Mr. Tyler. Almost hypocritical.)